110 Neb. 34 | Neb. | 1923
Lead Opinion
Plaintiff, as alleged, was driving east in an automobile on a highway about five miles west of Lincoln. The highway is a continuation of west O street, one of Lincoln’s main business thoroughfares, and is a part of the road then known as the Omaha, Lincoln and Denver highway. The highway is paved for about eight miles west of the city, and at a point about five miles west of the corporate limits it intersects a crossing of defendant railroad. In 1918 the railroad tracks Avere elevated several feet at the street intersection and a railroad bridge Avas constructed by the company over the highAvay to permit travel on the street thereunder. The subAvay under the track Avas also constructed by the railroad company. The bridge is supported by large timbers or pillars in the center of the subway, midway between the north and south borders of the paved highway. As plaintiff approached from the Avest his car ran into the company’s central bridge support, and from the resulting impact he received serious personal injuries and his car was damaged.
Alleging that Lancaster county was also liable in that it negligently permitted the railroad to construct the bridge in a negligent manner, in that the supports rvere placed in the center of the road Avithout any warning sign, plaintiff made the county a party defendant. For the personal injuries so sustained, and for the damage to his car, plaintiff recovered a verdict and
Plaintiff was an insurance solicitor. Before the accident he earned about $5,000 or $6,000 a year. He was then aged 51 years. With respect to his injuries he testified in substance that in the evening of October 8, 1920, he was driving alone to Lincoln in a Ford car; that he reached the intersection in question about 7:30 or 8 o’clock; that the night “was very dark and windy,” and the “weather ivas very dry at that time and the dust was very bad.” With respect to the immediate happening of the accident he testified:
“Well, I was on the paving and it was very dark and very dusty. The dust would come in waves, and I met several cars, and when I would meet those cars-1 would pull out to the side of the street and stop and Avait till they got by. Nobody turned on their dimmers because it Avas so dark, and it would blind a person to look in them and I Avould pull out and stop. Then I Avould pull up in the Centex-, as near as I could, in order to keep from rxxnnixxg off either side;” that he had never seen the Burlington bridge until the xxight in question, though in yeax*s goxxe by he had traveled the road; that he did not see the piling before he stxnxck it xvith his car.
He further testified: “When I hit the piling there seemed to be a flash of light, and my face seemed to be upxvard and I saxv what I thought Avas a telephone pole; and I thoxxght I had hit a telephone pole. I never thought of such a thing as there being such an obstruction in the road. I supposed I had hit a telephone pole, looking up jxxst a 'moment, a second, a flash, and that is all I kxxoAV. I am all through after that.” That he had no x*ecollection of hoAV he got home or of axxything that happened xxxxtil Christmas; that the accident greatly impaired his memory and his ability to x-ecoguize persons; that he had eight teeth broken, his head Avas badly hurt, and two pieces of bone were l’emoved from oixe of his fingers; that at the time of the tx-ial his
Before the examination of plaintiff closed it developed that his hearing was impaired, and that he was “deaf in one ear,” and that he had difficulty in recalling names of persons. Plaintiff testified that he was a careful driver; that his rate of speed at the time was about 15 miles an hour, and that it was never more than 20 miles an hour on paved roads; that just before he struck the pier the dust whirled around so that he could not see 6 feet ahead.
Ralph Cox, a young man living 300 or 400 feet south of the intersection testified that he heard the car strike against the piling about 7:30 or 8 o’clock; that he saw the headlights of a car about 200 feet away coming from the east just a few seconds before the impact; that by the sound he thought the two cars must have collided; that he and his brother found plaintiff sitting in his car leaning forward over the steering wheel, which was in an upright position and evidently bent forward; that plaintiff “seemed to hold his chest; his hand was bleeding slightly and one limb;” that there was no warning signal at the bridge, but the piling was painted white, and that after the accident a danger signal was placed in the center of the piling. Subsequently all of the evidence respecting the “changed condition,” to which the witness testified, was stricken out and the jury were instructed not to consider it at all.
The testimony of Ralph’s brother, Ray, with respect
Three physicians were called who had. attended plaintiff. Another testified as an X-ray expert. Dr. Bently, a physician of about 40 years’ experience, testified that when he was called to plaintiff’s residence, the night of He injury, he found him bruised and delirious; that he bandaged three fractured ribs and both lower limbs: that the back of his neck was bruised, stiff, sore and swollen; that this condition continued several weeks; that he had a glass cut near his right eye and another on the jaw and chin and a severe gash on the right leg between the knee and the ankle, and he was bruised on the left leg and on the middle finger of the right hand; that he suffered considerable pain and had to be kept under .opiates; that his back was strained, “so that he had to be lifted up and down on account of the pain and soreness in the lumbar region; the chest was pretty sore, tender to touch and difficult breathing; his neck was stiff and he could not turn his head either way for two or three ,Aveeks. He had to be raised up. After we got him out of bed he had to be raised up in áñ elevated chair for .quite a Avhile in order to sit up at all.” and he Avas unable to walk.
The evidence of the other tAvo physicians substantially corroborated Dr. Bently’s evidence, and one of them Avho Avas subsequently, called to treat plaintiff for a con
Plaintiff’s wife testified that for 11 weeks or thereabouts her husband had to sleep in a chair, and for all of that time he was unable to bear any weight on his feet, and that he had to be carried from one chair to another; that he did not get out of the house until the second week in January and then only to the front porch.
In respect of the installation of the subway under the proposed railroad bridge, the county alleges that .sometime in December, 1917, a letter was addressed by defendant railroad to the county surveyor which was by that official referred to the board of county commissioners. The contents of the letter are not shown, but from the tone of a resolution of the board, dated December 12, 1917, it appears that it purported to relate, in a .very general way, to a proposed creation of a subway, under the railroad, at the isitersection where the accident occurred. Following the receipt of the letter the board adopted a i'e,solution which is incorporated in the respective answers of both- defendants. The resolution, so far as material here, follows:
“Resolution. Whereas, a letter ,of December 11, 1917, to Arthur E. Edgren, county surveyor of Lancaster county from the Chicago, Burlington & Quincy Railroad Company, has been referred by the said Arthur E. Edgren to this board, and -whereas, it is desirable that official action be taken regarding the proposed .subway on the O. L. & D. road -west of Cushman and east of Emerald referred to in said letter: Therefore be it resolved by the board of county commissioners of Lancaster county, Nebraska, in regular session this 12th day of December, 1917, that it is the sense of said*40 board that the following plans would be acceptable: First. That the Chicago, Burlington & Quincy Railroad Company construct in 1918 a double subway for vehicles, each opening sixteen feet wide and fourteen feet high with an eighteen inch drainage opening below ,the ground. Second. That the Chicago, Burlington & Quincy Railroad Company do all grading on its light of way for such subway, also bear the expense for the extra amount of pavement necessary to fit the double sixteen-foot opening rather than a normal width of paving eighteen feet as is provided on the rest of the road, but only so much of said extra paving as shall be on the Chicago, Burlington & Quincy Railroad right of way. * * * Fourth. This board on its part to abandon ■¿he present grade crossing during the construction period and after the subway is completed to abandon the grade crossing permanently. * * * Sixth. After the completion of the subway on the Cox crossing (presumably the crossing in question) this board will take action and consider the closing of road No. 604 over the Chicago, Burlington & Quincy Railroad track; provided that a proper petition is filed therefor, or when this board is vested with jurisdiction in the premises. Seventh. The Chicago, Burlington & Quincy Railroad to retain to itself control for grant of wires or other structures through the opening so that safety of the public and of the railroad company can be provided for, and to retain also control of the advertising features (afforded by the Avails of the subway so as to keep the structure'free from objectionable matters.”
The county denies liability, and in support of its contention cites 7 Am. & Eng. Ency. of Law (2d ed.) 947. and Elliott, Roads and Streets (3d ed.) 535. The cited authorities merely hold that a county cannot be held liable for a negligent breach of duty respecting the care of public higlnvays Avhere there is no statute creating the' liability. But in Nebraska Ave have such a statute, so that the cited authorities are not in point.
Failing in that defense the county attempts to evade statutory liability by a plea that the repair. and the upkeep of the road was delegated to another. But that is no defense. In Iowa it was held that the county’s duty to maintain an approach to a bridge and to keep it in reasonable repair “cannot be so delegated to (dhers as to relieve the county from liability if the approach should be negligently constructed or negligently permitted to become out of repair.” Clark v. Sioux County, 178 Ia. 176; Bethel v. Pawnee County, 95 Neb. 203; Early County v. Fain, 2 Ga. App. 288; Interurban R. & T. Co. v. City of Cincinnati, 94 Ohio St. 269; Harriman v. Moore & Co., 74 N. H. 277. In Brengman v. King County, 181 Pac. 861 (107 Wash. 306), where ihe court had under consideration an injury that arose from the removal of a barricade in the highway which was being repaired, the court said: “It is the duty of a county to show such lights, around a place where au obstruction exists and where automobiles are accustomed to pass, that one approaching can see that a dangerous condition exists.” And this rule, as pertaining to railroad crossings, is particularly applicable to a highway in the open country where rules of the road cannot be strictly supervised.
To establish its nonliability the railroad company, inter alia, insists that the plan for the construction of the bridge, as built, was submitted to and approved by
Aside from the point of law involved, we do not think the evidence of the company itself on this point, when fairly construed, sustains the argument. The county engineer, who' is also county highway commissioner, testified that, as such, he was “in charge of the construction and maintenance of the roads and bridges in the county.” He also testified that a plan of a proposed bridge was submitted to him by the railroad company, which he examined, and that he conferred with the county board with respect thereto. He was then asked if he “observed whether it was 'built according to those plans ? * * and according to the resolution passed by .the board? A. It was not built according to the first plan submitted. * * * Q. What were those first plans'? A. The first plan was for a permanent concrete structure Q. Was that later abandoned? A. Yes, sir. * * * Q_ .Did you confer with the engineers of the Burlington regarding the abandonment of that? A. Yes, sir. Q. Do you know why the plan was abandoned? Mr. Wilson: Plaintiff objects unless he shows the source of bis information. Court: Overruled. Yes, or no. (Exception.) A. I do. Q. You may state why. Mr. Wilson: Plaintiff objects because it is now apparent that he got his information from the engineers of the Burlington, which would be hearsay. (Objection overruled. Exception.) A. Because it was vetoed by the director general of railroads at that time.” When asked if he conferred with the 'board- of county commissioners regarding the double passage way plan under the bridge,, he testified: “T think I did.”
It is to be noted that while on his direct examination the county engineer testified that the resolution of the county board, in evidence, referred to the bridge that was finally constructed, on the cross-examination he testified: “Q. At the time the county commissioners
There is evidence, as hereinbefore noted, tending to prove that plaintiff had no knoAvledge of the existence of the obstruction until he struck it. It Avas further shown that at a point 50 feet Avest of the bridge, at the edge of the paving, there Avas “a large concrete sign on the right-hand side of the road some four or five feet across,” and that the Avord “danger” was cut into the concrete. The evidence on this point, Avhich Avas developed by defendant on the cross-examination, Avould tend to support a finding by the jury that the danger sign was an admission on the part of defendant that the obstruction Avhich it placed in the road Avas a menace to travelers passing that Avay. This evidence and the evidence that the lights on plaintiff’s car were throAvn directly in front, and also the eAddence in respect of the dust storm and the darkness and the flash of light, evidently from the car Avhich approached from the east, and Avhich momentarily blinded plaintiff, all taken together doubtless tended to convince the jury that the negligence of the defendants was the proximate cause of the accident. It is elementary that the public may assume that those Avho are charged Avith the maintenance of highways have performed their duty.
In Robertson v. Monroe, 116 Atl. (N. H.) 92, the court held: “A person injured 'by the dangerous approach to a highway, created by act of 'the selectmen some time before, may allege both the original negligence in creating the danger and the negligent failure to erect barriers or place lights, and may ' recover for
In Town of Mt. Pleasant v. City of New York, 191 N. Y. Supp. 741, it is said: “A structure designed to .carry an aqueduct across a highway consisting of solid masonry and earth embankments extending into ihe highway about 33 feet on its westerly side and about 13 feet on the easterly side, leaving a roadway under the arch of but 20 feet, is a public nuisance unless legal authority exists therefor. * * * It is not within (he power of municipal authorities to consent to the occupation of a public highway by a permanent structure amounting to a public nuisance, nor is it within the power of the legislature to vest them with such power.” That the question of contributory negligence in a like case, was one of fact for the consideration of the jury is pointed out in Corcoran v. City of New York, 188 N. Y. 131. See, also, Chisholm v. State, 141 N. Y. 246; Flynn v. Town of West Hartford, 98 Conn. 83; Kelsea v. Town of Stratford, 118 Atl. (N. H.) 9.
In Stone v. City of Seattle, 70 Pac. 249 (30 Wash. 65) it was held: “A city cannot escape liability for injury from a defective sidewalk because the defect is part of the original plan of construction. Whether a city, is negligent in placing an electric light so that the shadow of the pole supporting it conceals a hole in a sidewalk is a question for the jury.”
Very respectable authority holds that, even though the defect is in the plan,' as distinguished from the inode of execution, such fact will nor. relieve from liability. Schrader v. City of Port Huron, 106 Mich. 173; City of Circleville v. Sohn, 59 Ohio St. 285.
In City of Chicago v. Seben, 46 N. E. 244 (165 Ill. 371) it was held: “A city is liable to an individual for injury received from an unsafe condition of the. street, whether arising from construction of sewer according
In Sebert v. City of Alpena, 43 N. W. 1098 (78 Mich. 165) it was held: “Laws Mich. 1887, p. 345, requiring cities to keep streets reasonably safe and fit for travel, applies to a defect in construction as well as to neglect to repair; and the safety required extends to travel by night as well as by day.” See City of Dayton v. Taylor's Administrator, 62 Ohio St. 11.
In Perrotti v. Bennett, 109 Atl. 890 (94 Conn. 533) it was held: “'Although the state or highway commissioner could not be held liable for error in the adoption of a plan of highway construction whereby a sewer was improperly covered for, heavy traffic, there was liability for the negligent continuance of such a condition, resulting in injury to plaintiff’s motor truck.” In the body of the opinion it is said- that, when the plan in its execution creates a nuisance or causes direct, injuries to another, liability follows for the damage done. The court further observed: “If the plan be defective from the beginning, or if its defect originate shortly after the completion of the improvement and injury be ultimately necessarily the inevitable or probable result, the municipality will be liable. Clearly this is just. Upon this assumption the city created the defective improvement and either knew of it or was chargeable with knowledge of it. Every moment of its continuance was an act of negligence by the municipality. The injury greAV out- of and Avas attributable to this negligent continuance and not to the plan so defectively conceived of, but to the operation of the plan after its defective condition Avas known or ought, in the exercise of reasonable diligence, to have been known to the municipality.”
In Gould v. City of Topeka, 32 Kan. 485, it is said: “If a city or its governing board should order that a high and narrow embankment, Avith precipitous sides, should be made in a public street for the purpose that
In Gulf, C. & S. F. R. Co. v. Sandifer, 69 S. W. 461 (29 Tex. Civ. App. 356) it is said: “Where a railroad company constructs on its right of way a bridge over a ravine, ■together Avith approaches; the bridge and approaches being likeAvise in, and constituting a part of, the roadAvay of a city street; the Avhole leading up to the railroad crossing; and one of the approaches is dangerous to travelers, from want of a guard rail to prevent falling over its side into the rocky ravine, nine feet beloAV, both the city and the railroad company are liable for injuries to travelers thereby occasioned.”
In People v. Delaware & H. Co., 69 N. E. 651 (177 N. Y. 337) it Avas held: “While a railroad company may .carry the highway over or under its track, in its discretion, subject to its duty to restore the highway to such a state as not to impair its usefulness, the company cannot be said to have restored the highway to such a state as not to have unnecessarily impaired its use, ■Avhere the restoration seriously affects its use, though it may be practicable to use it, Avhile by restoration in another manner the use avouIc! be Avhollv unimpaired.”
In Harriman v. Moore & Co., 67 Atl. 225 (74 N. H. 277) this Avas said: “A traveler on a higliAvay need not,
If the rule is to prevail which is advanced and practiced by defendants, with respect to the approval and the adoption of a plan of highway construction by public authorities, and the construction ultimately proves to be a menace to the public, it follows that such authorities may, by some such subterfuge, wrongfully escape liability for the installation of dangerous devices and constructions.
The rule announced in the Gould case and in the other cases cited herein on the same point is sound, and, pursuant to the rule, which we approve, the county authorities should not have neglected to first consider the question of safeguarding the public 'by the installation of lights or other warning devices, and such safeguards should have been subsequently installed. The central piers are a standing menace, an ever present peril to every passing car at a point where, in the nature of things, cars would only chance to meet at intervals.
Counsel argue generally that the pier in the center of the highway under the bridge, and at the bottom of a declivity, tends to minimize the danger of cars colliding when traveling in opposite directions. We do not think so. By the same token it could be established That an unlighted row of telephone poles placed in the center of a highway in the open country would minimize the danger of travel by night and by day.
The defendants cite Watters v. City of Omaha, 76 Neb. 855, but that case is not in point because the dangerous nature of the construction complained of here is obvious, and besides the erection by the company of the “danger” sign, to which reference has been made, must be taken as an admission against interest. And in this connection it may be noted in passing that the resolution
The accident occurred almost two years after the Avar Avas ended, and there is nothing in the record to shoAV that the railroad company Avas prevented from installing the proposed steel and concrete bridge, without central piers, after the Avar and before the date of the accident. And, besides, there is no competent evidence to shoAV that the installation of a steel structure “was vetoed by the director general of railroads,” as testified by the highAvay commissioner.
Defendants complain because the court, in its statement of the case to the jury, incorporated the major part of the pleadings in the instructions, a practice which has often been condemned by this court. But in the present case the objection is not clearly available for the reason that e\Tidence Avas presented on every material allegation in the respective pleadings.
Other of the instructions have been assailed by defendants, and exceptions have been taken 'because certain instructions offered by defendants were refused, but avo do not find prejudicial error on that feature of the case
Defendants argue that plaintiff's negligence Avas the proximate cause of the accident. But the question of comparative negligence Avas ■submitted to the jury and there Avas sufficient evidence to justify a finding Other way. It folloAvs that the verdict should not be disturbed on that ground. The action is based upon a plain statutory provision from Avhich, in vieAV of the negligence complained of, there appears to be no escape. Raasch v. Dodge County, 43 Neb. 508; Hollings
We do not find reversible error. The judgment of the district court is
Affirmed.
Dissenting Opinion
dissenting.
I am compelled to dissent because it seems to me that the fundamental principles of law applicable to the undisputed facts show conclusively that there was no actionable negligence on the part of either defendant and that the injuries to plaintiff were caused solely by his own negligence.
At the place of the accident the paved highway runs under the railroad bridge. A row of piers, painted white to make them conspicuous, extends lengthwise through the center of the pavement which is divided into two roadways under the railroad track. At each side of the row of piers the driveway is as wide as the pavement by which the subway is approached from both directions. There is a perpendicular wall on each side of the subway. The piers divide the traffic in the center and keep each line of travel on the right-hand side and prevent the line in one direction from crowding the line in the opposite direction, where, on account of the walls, there is no escape from reckless drivers by leaving the pavement. The feature of highway construction condemned amounts to a mere slight bend in the road. It
The statute making a county liable for damages resulting from a failure to keep the highways in a safe condition for travel is not a public guaranty of the safety of travelers or a form of insurance do protect the reckless from the consequences of their own negligence. From a county’s former immunity from suit to the affirmance of a judgment for plaintiff’s injuries, seems to me to be a radical departure from the fundamental principles of law applicable to the indisputable facts.
On the face of the majority opinion itself evidence that plaintiff was injured solely as the result of his own negligence is as clear as the failure to prove any negligence of defendants.
-According to the opinion of the majority the story of plaintiff, as told by himself on the witness-stand, shows that he had never before seen the bridge over the highway; that it was dark and tvindy, dry and dusty, the dust coming in tvaves; that the dust whirled so he could not see six feet ahead; that he tried to keep in the center of the road; that he “never thought of such a thing as there being such an obstruction in the road;” that he did not see the pier until he struck it; that the collision occurred when he was going 15 miles an hour.
The negligence of plaintiff and the resulting injuries are thus demonstrated by his own testimony. Going 15 miles an hour in a dust-storm which prevented him from seeing six feet ahead, he pursued a straight course, never thinking of an obstruction or a curve. Pursuing the same course elsewhere under similar conditions he would have run off the road at any bend, division, or branch, re gardless of consequences. The darkness, the dust-storm and the approaching headlights were not creations of defendants, but were ordinary incidents of travel which mature, careful persons on a highway anticipate. The instinct and means of self-preservation bestowed by nature upon plaintiff were not under the control of de
The injuries to plaintiff make a strong appeal to sympathy and charity, but do not legally create an involuntary public burden upon taxpayers whose representatives in office have been guilty of no actionable wrong; nor should the burden of plaintiff’s negligence fall upon those who pay the expenses of railroad transportation. Judicial pronouncements which unnecessarily tend to weaken personal responsibility and reward carelessness at the expense of the public will not make litigation a better means of obtaining justice, improve the individua! members of society, or aid the government in protecting law-abiding citizens from the menace of reckless drivers.
It seems to me the judgment affirmed extends liability for damages beyond legal or just bounds. As I view the undisputed facts defendants did not violate any private or public duty. Plaintiff’s injuries resulted solely from his own negligence. The judgment should be reversed and the action dismissed.